The Art of the Mock

The Mock Approach

Logistically, the mock trial can be set up a number of different ways. Here are just a few examples:

Full Trial

Replete with opening statements, presentation of evidence and closing argument, the full trial boasts obvious benefits by giving trial counsel the greatest opportunity to test themes, order of proof, and presentation of evidence. It is also the most impractical due to its high expense and prohibitive time constraints. In-house counsel should always remember that, more often than not, the mock should be done in one day (including deliberations). The risk of jurors not coming for a second day is simply too high.

Condensed Trial

With limited opening statements, evidence, and closing argument, the condensed trial is more practical than its full-fledged counterpart, giving trial counsel the opportunity to present the most important points of their case and receiving invaluable jury feedback, while limiting time and expense.

Hybrid Trial; 'Clopening'

With opening statements, evidence, and closing argument wrapped into a single presentation for the jury, this is the version that my firm used when mocking a $200 million Ponzi scheme case perpetrated by the now-infamous Scott Rothstein against a major banking institution. This form of mock can be completed in a day, with time left over to view the jury's deliberation, receive their feedback, and engage in a question-and-answer session with the jurors. As discussed below, jury deliberation, feedback and a substantive Q&A is priceless.

Focus Group

A focus group is a presentation of facts and evidence to the jury followed by a targeted question and answer session. Focus groups are the least expensive form of mock trial, and are a great way to test themes, gauge the significance of certain evidence or testimony, and narrow trial counsel's pool of favorable jurors based on juror background and response.

These variations in form are one of the beauties of the mock trial. While complex commercial disputes rarely get tried, the number and nature of mocks are limited only by the budget and creativity of the attorneys preparing their case for the jury. Attorneys can test out new themes and theories, experiment with orders of proof, and get “jury experience” (unfortunately this is as close as many “high-stakes” trial lawyers are getting to trial these days). They may present only one side of the case, or both. They may use or exclude evidence that might not be admitted at trial to gauge its value. There are no hard and fast rules about how to set up the mock ' the goal is to develop your case, deal with your weaknesses, and find your ideal jury.

Following are just a few of the benefits in-house counsel can and should expect from trial counsel looking to conduct the mock trial.

Develop the Cornerstone of Your Case: The Theme

Trial lawyers must think about their theme of the case from the inception of any new litigation. Greed, revenge, accountability, too good to be true. Putting on a successful trial requires telling a story, and a lawyer who knows how to deliver the tale. At trial, we are storytellers, characters and actors trying to convince a group of strangers that they should believe our version of the story.

It is fatal to a trial lawyer to have his or her theme fall flat. Maybe the jury doesn't understand. Or worse, maybe they do understand but the theme just doesn't resonate.

Conducting an early mock trial will help the trial lawyer develop the theme of the case, confirming that she's on the right track or that she needs to tell a different story. The early mock trial has the added benefit of exposing weaknesses of the case, for which attorneys can then plan solutions.

A mock trial after dispositive motions is also valuable, once the theme has been refined and the presentation of argument and evidence tailored to the story.

Who Is the Best Juror for My Case?

Mock trials are also an opportunity to learn about the most important person in your case ' the juror. Many cases are won, or lost, in voir dire . Picking the jury is arguably the most important aspect of trial, and understanding your potential jury pool has the benefit of developing a strategy for juror selection. Learn how to formulate strike questions for cause to pick the ideal juror, identifying the best questions to weed out undesirable jurors or conversely to secure ideal jurors.

Jurors of certain backgrounds ' work background, educational background, family upbringing and socio-economic status ' all bring different life experiences with them to deliberations. Outside of chasing down a juror post-verdict for an informal question and answer session, the trial lawyer rarely gets to hear how his jurors' life experiences impacted their deliberations.

This is one of the mock's most beautiful advantages.

In a mock setting, attorneys can get resumes of their mock jurors in advance of the trial to zero in on the specific background that is helpful or unhelpful for the case. The more you mock the case, the more accurately you will be able to home in on the juror that suits your case. Deliberations can be viewed live, recorded, transcribed, and followed up with questions by the attorneys as to what was effective and what wasn't, both in terms of substance and in terms of style. There is no replacement for putting on your case and getting instant feedback on what worked and what didn't in every aspect of the trial.

The Jury's Findings Never Lie: Listen to Them

As lawyers, we believe that whatever we view as the most important aspect or evidence in the case must be so. Mocking a case can be a wake-up call that, at least to some degree, we are off point. Inevitably, jurors will focus on matters that the lawyers do not view as important, and will not focus on matters that the lawyers try to emphasize. This goes beyond, “I liked one attorney's shoes more than the other.” It's more along the lines of, “I didn't trust the defense's star witness; he was shifting too much in his chair.”

Jurors see everything. During our mocks, we would always see jurors who seemed not to be paying attention ' only to find during deliberations that they were the most opinionated. It is up to trial counsel to get the jurors to focus their attention on the intended target, but a little help can go a long way. Learning that some jurors may not like a lawyer's attire is one thing. (In case you were wondering, studies show that the color jurors trust the most is brown). But learning before trial that the star witness is entirely disregarded by the jury because he fidgets too much can be the difference between winning and losing.

Witnesses can be prepared if a problem is revealed. The mock trial can expose these and similar problems and alert trial counsel to the need for some change. Beyond exposing weakness, jurors also give invaluable insight into what is effective in the presentation of evidence. During our firm's Ponzi scheme mock, conducted in preparation for a seven week trial, one juror commented that he thought the presentation of an e-mail was misleading because the attorneys only highlighted and read one sentence of the paragraph. Of course, the rest of the paragraph was irrelevant. But the juror didn't know that, and he interpreted the attorney's presentation as misleading.

A trial lawyer cannot afford to have his or her jury feel manipulated. Learning that the use of a particular visual aid could potentially be viewed as misleading is crucial to an effective presentation of evidence and, ultimately, keeping the trust of the jury.

The Mock Can Dictate Settlement Negotiation Strategy

Commercial litigators understand that litigating a case to trial involves an ongoing valuation process. Understanding the true value of the case is critical to the trial lawyer, who needs to know when to push for a jury or advise the client to pull the trigger on settlement. The mock trial informs the valuation process, letting trial and in-house counsel know the strengths and weaknesses of all parties' cases, and how to proceed with any settlement negotiations accordingly. The results of mock trials going in a negative direction could even help change the mind of a stubborn client, partner, insurance carrier, and so forth.

So what should in-house counsel look for and demand when preparing for a mock trial? Based on our experience, here is a set of best practices for the in-house counsel looking to have their trial lawyers successfully execute the mock.

Best Practices

Prepare the Best Possible Opposition. There's no better way to learn the true value of your case than forcing yourself and your team to learn the true value of your opponent's. (Mocking the opponent's position has the added benefit of giving the more junior members of the trial team experience in presenting arguments and evidence; an opportunity that gets scarcer as trials do the same.) Knowing the opponents' weaknesses is critical, but knowing how to deal with their strengths is equally important.

Observe (and if Necessary, Focus on) the Deliberations. Once the attorneys' presentation is complete, listen to the jurors and their discussion (ideally from a separate room via a live feed; the jurors will be uncomfortable discussing the case with the attorneys in the room.) Note what the jurors focus on, whom they believed among both the attorneys and the witnesses, and what evidence they found compelling or disregarded. If the case goes to trial, the same people serving as your mock jurors will be the people empanelled to actually decide your case when it counts. Listen to them.

In one mock trial, we had the jurors hold clickers with a “plus” and “minus” button for them to express when they liked or disliked what the attorney was saying. Although a humbling process to see the “line” go up and down based on what you were saying in real time, it was an incredibly powerful way to zero in on what worked for the jurors and what didn't.

Ask for Feedback on Style, Not Just Substance. The chance to hear the jurors discuss the case does not need to be limited to hearing them talk about which side they thought was right, which side they thought was wrong, and why. Go beyond that. Find out how to refine the presentation: Volume, tone and assertiveness. How attorneys deliver their presentation stylistically may be just as important as the substance of the argument and the evidence presented. We had a vocal juror who was offended by the flashy watch worn by one of the attorneys: Know your audience.

Mock with Targeted Panels. Litigating a case involving a bank, insurance company, or other potentially controversial entity? Experiment with different mock jury panels, with varying levels of education, work experience or interaction with the kind of business that's involved in your dispute. Study the mock jurors' resumes before deliberations; anticipate their reactions, and then note whether you were right or, if you were wrong, why. While there's obviously no guarantees of how any particular juror will respond to a given set of facts, having at least a basic understanding of how certain similarly situated people have responded in the past can inform the voir dire process when deciding on strikes, or give the trial attorneys a sense of how their already empanelled jury might view their case.

Test and Develop Voir Dire Strategy. Based on what's learned from the “targeted panel” approach, trial counsel can further develop their voir dire strategy by identifying a target jury and refining questioning to reach that goal. It is critical to develop strike questions that will empanel the jury you are seeking.

Do Not Focus on Specifics and Do Not Get Obsessed with 'Winning' the Mock. We'cannot tell you how many times attorneys lose sight of the forest and try to include evidence that will never be admitted at trial simply to “win.” This is pointless. Trial counsel and the in-house counsel overseeing them should remember that the mock trial is for the big picture. Develop the story, make sure it resonates or at least has the potential to resonate with the jury, and refine the presentation based on what is learned from observing deliberations. The mock trial is not the time to nitpick over every little detail.

Conclusion

Used properly, the mock trial is an invaluable tool for the trial lawyer and their client. The benefits are robust, providing trial counsel an opportunity to evaluate strengths and weaknesses of key elements of the case, and learn directly from the jurors what works, what needs work, and what should be avoided. Ultimately, mock trials provide information that the trial lawyer simply cannot get any other way. They are one of the trial lawyer's greatest tools. So for the in-house lawyer faced with high-stakes litigation headed for trial, remember: trial shouldn't be the first time you hear what a jury thinks about your case. Experienced litigators know this. So when deciding on whether to mock, remember that it can be the most valuable tool in your pre-trial arsenal.

Javier Lopez is a partner and Tal Lifshitz is an associate with Kozyak Tropin & Throckmorton. The authors can be reached at [email protected] and [email protected], respectively.

Who is the perfect juror? What is the most effective theme? What evidence is the most compelling in the eyes of the jury? These and many other similar questions plague the dreams of many trial lawyers, because high-stakes commercial litigation trials are multi-million-dollar productions with no room for error.

In-house counsel should know that skilled litigators often execute “mock trials,” playing out every element of the trial from jury selection to closing arguments. These mock trials can be invaluable in ways far beyond just a dress rehearsal. And if they are used correctly, a client's chances of securing a favorable litigation result can be increased exponentially ' sometimes by not even going to trial.

The attorneys at our firm have conducted countless mock trials through the years and have learned what works, what does not, and what to do to get the most out of the simulation as the parties prepare for trial.

The Mock Approach

Logistically, the mock trial can be set up a number of different ways. Here are just a few examples:

Full Trial

Replete with opening statements, presentation of evidence and closing argument, the full trial boasts obvious benefits by giving trial counsel the greatest opportunity to test themes, order of proof, and presentation of evidence. It is also the most impractical due to its high expense and prohibitive time constraints. In-house counsel should always remember that, more often than not, the mock should be done in one day (including deliberations). The risk of jurors not coming for a second day is simply too high.

Condensed Trial

With limited opening statements, evidence, and closing argument, the condensed trial is more practical than its full-fledged counterpart, giving trial counsel the opportunity to present the most important points of their case and receiving invaluable jury feedback, while limiting time and expense.

Hybrid Trial; 'Clopening'

With opening statements, evidence, and closing argument wrapped into a single presentation for the jury, this is the version that my firm used when mocking a $200 million Ponzi scheme case perpetrated by the now-infamous Scott Rothstein against a major banking institution. This form of mock can be completed in a day, with time left over to view the jury's deliberation, receive their feedback, and engage in a question-and-answer session with the jurors. As discussed below, jury deliberation, feedback and a substantive Q&A is priceless.

Focus Group

A focus group is a presentation of facts and evidence to the jury followed by a targeted question and answer session. Focus groups are the least expensive form of mock trial, and are a great way to test themes, gauge the significance of certain evidence or testimony, and narrow trial counsel's pool of favorable jurors based on juror background and response.

These variations in form are one of the beauties of the mock trial. While complex commercial disputes rarely get tried, the number and nature of mocks are limited only by the budget and creativity of the attorneys preparing their case for the jury. Attorneys can test out new themes and theories, experiment with orders of proof, and get “jury experience” (unfortunately this is as close as many “high-stakes” trial lawyers are getting to trial these days). They may present only one side of the case, or both. They may use or exclude evidence that might not be admitted at trial to gauge its value. There are no hard and fast rules about how to set up the mock ' the goal is to develop your case, deal with your weaknesses, and find your ideal jury.

Following are just a few of the benefits in-house counsel can and should expect from trial counsel looking to conduct the mock trial.

Develop the Cornerstone of Your Case: The Theme

Trial lawyers must think about their theme of the case from the inception of any new litigation. Greed, revenge, accountability, too good to be true. Putting on a successful trial requires telling a story, and a lawyer who knows how to deliver the tale. At trial, we are storytellers, characters and actors trying to convince a group of strangers that they should believe our version of the story.

It is fatal to a trial lawyer to have his or her theme fall flat. Maybe the jury doesn't understand. Or worse, maybe they do understand but the theme just doesn't resonate.

Conducting an early mock trial will help the trial lawyer develop the theme of the case, confirming that she's on the right track or that she needs to tell a different story. The early mock trial has the added benefit of exposing weaknesses of the case, for which attorneys can then plan solutions.

A mock trial after dispositive motions is also valuable, once the theme has been refined and the presentation of argument and evidence tailored to the story.

Who Is the Best Juror for My Case?

Mock trials are also an opportunity to learn about the most important person in your case ' the juror. Many cases are won, or lost, in voir dire . Picking the jury is arguably the most important aspect of trial, and understanding your potential jury pool has the benefit of developing a strategy for juror selection. Learn how to formulate strike questions for cause to pick the ideal juror, identifying the best questions to weed out undesirable jurors or conversely to secure ideal jurors.

Jurors of certain backgrounds ' work background, educational background, family upbringing and socio-economic status ' all bring different life experiences with them to deliberations. Outside of chasing down a juror post-verdict for an informal question and answer session, the trial lawyer rarely gets to hear how his jurors' life experiences impacted their deliberations.

This is one of the mock's most beautiful advantages.

In a mock setting, attorneys can get resumes of their mock jurors in advance of the trial to zero in on the specific background that is helpful or unhelpful for the case. The more you mock the case, the more accurately you will be able to home in on the juror that suits your case. Deliberations can be viewed live, recorded, transcribed, and followed up with questions by the attorneys as to what was effective and what wasn't, both in terms of substance and in terms of style. There is no replacement for putting on your case and getting instant feedback on what worked and what didn't in every aspect of the trial.

The Jury's Findings Never Lie: Listen to Them

As lawyers, we believe that whatever we view as the most important aspect or evidence in the case must be so. Mocking a case can be a wake-up call that, at least to some degree, we are off point. Inevitably, jurors will focus on matters that the lawyers do not view as important, and will not focus on matters that the lawyers try to emphasize. This goes beyond, “I liked one attorney's shoes more than the other.” It's more along the lines of, “I didn't trust the defense's star witness; he was shifting too much in his chair.”

Jurors see everything. During our mocks, we would always see jurors who seemed not to be paying attention ' only to find during deliberations that they were the most opinionated. It is up to trial counsel to get the jurors to focus their attention on the intended target, but a little help can go a long way. Learning that some jurors may not like a lawyer's attire is one thing. (In case you were wondering, studies show that the color jurors trust the most is brown). But learning before trial that the star witness is entirely disregarded by the jury because he fidgets too much can be the difference between winning and losing.

Witnesses can be prepared if a problem is revealed. The mock trial can expose these and similar problems and alert trial counsel to the need for some change. Beyond exposing weakness, jurors also give invaluable insight into what is effective in the presentation of evidence. During our firm's Ponzi scheme mock, conducted in preparation for a seven week trial, one juror commented that he thought the presentation of an e-mail was misleading because the attorneys only highlighted and read one sentence of the paragraph. Of course, the rest of the paragraph was irrelevant. But the juror didn't know that, and he interpreted the attorney's presentation as misleading.

A trial lawyer cannot afford to have his or her jury feel manipulated. Learning that the use of a particular visual aid could potentially be viewed as misleading is crucial to an effective presentation of evidence and, ultimately, keeping the trust of the jury.

The Mock Can Dictate Settlement Negotiation Strategy

Commercial litigators understand that litigating a case to trial involves an ongoing valuation process. Understanding the true value of the case is critical to the trial lawyer, who needs to know when to push for a jury or advise the client to pull the trigger on settlement. The mock trial informs the valuation process, letting trial and in-house counsel know the strengths and weaknesses of all parties' cases, and how to proceed with any settlement negotiations accordingly. The results of mock trials going in a negative direction could even help change the mind of a stubborn client, partner, insurance carrier, and so forth.

So what should in-house counsel look for and demand when preparing for a mock trial? Based on our experience, here is a set of best practices for the in-house counsel looking to have their trial lawyers successfully execute the mock.

Best Practices

Prepare the Best Possible Opposition. There's no better way to learn the true value of your case than forcing yourself and your team to learn the true value of your opponent's. (Mocking the opponent's position has the added benefit of giving the more junior members of the trial team experience in presenting arguments and evidence; an opportunity that gets scarcer as trials do the same.) Knowing the opponents' weaknesses is critical, but knowing how to deal with their strengths is equally important.

Observe (and if Necessary, Focus on) the Deliberations. Once the attorneys' presentation is complete, listen to the jurors and their discussion (ideally from a separate room via a live feed; the jurors will be uncomfortable discussing the case with the attorneys in the room.) Note what the jurors focus on, whom they believed among both the attorneys and the witnesses, and what evidence they found compelling or disregarded. If the case goes to trial, the same people serving as your mock jurors will be the people empanelled to actually decide your case when it counts. Listen to them.

In one mock trial, we had the jurors hold clickers with a “plus” and “minus” button for them to express when they liked or disliked what the attorney was saying. Although a humbling process to see the “line” go up and down based on what you were saying in real time, it was an incredibly powerful way to zero in on what worked for the jurors and what didn't.

Ask for Feedback on Style, Not Just Substance. The chance to hear the jurors discuss the case does not need to be limited to hearing them talk about which side they thought was right, which side they thought was wrong, and why. Go beyond that. Find out how to refine the presentation: Volume, tone and assertiveness. How attorneys deliver their presentation stylistically may be just as important as the substance of the argument and the evidence presented. We had a vocal juror who was offended by the flashy watch worn by one of the attorneys: Know your audience.

Mock with Targeted Panels. Litigating a case involving a bank, insurance company, or other potentially controversial entity? Experiment with different mock jury panels, with varying levels of education, work experience or interaction with the kind of business that's involved in your dispute. Study the mock jurors' resumes before deliberations; anticipate their reactions, and then note whether you were right or, if you were wrong, why. While there's obviously no guarantees of how any particular juror will respond to a given set of facts, having at least a basic understanding of how certain similarly situated people have responded in the past can inform the voir dire process when deciding on strikes, or give the trial attorneys a sense of how their already empanelled jury might view their case.

Test and Develop Voir Dire Strategy. Based on what's learned from the “targeted panel” approach, trial counsel can further develop their voir dire strategy by identifying a target jury and refining questioning to reach that goal. It is critical to develop strike questions that will empanel the jury you are seeking.

Do Not Focus on Specifics and Do Not Get Obsessed with 'Winning' the Mock. We'cannot tell you how many times attorneys lose sight of the forest and try to include evidence that will never be admitted at trial simply to “win.” This is pointless. Trial counsel and the in-house counsel overseeing them should remember that the mock trial is for the big picture. Develop the story, make sure it resonates or at least has the potential to resonate with the jury, and refine the presentation based on what is learned from observing deliberations. The mock trial is not the time to nitpick over every little detail.

Conclusion

Used properly, the mock trial is an invaluable tool for the trial lawyer and their client. The benefits are robust, providing trial counsel an opportunity to evaluate strengths and weaknesses of key elements of the case, and learn directly from the jurors what works, what needs work, and what should be avoided. Ultimately, mock trials provide information that the trial lawyer simply cannot get any other way. They are one of the trial lawyer's greatest tools. So for the in-house lawyer faced with high-stakes litigation headed for trial, remember: trial shouldn't be the first time you hear what a jury thinks about your case. Experienced litigators know this. So when deciding on whether to mock, remember that it can be the most valuable tool in your pre-trial arsenal.

Javier Lopez is a partner and Tal Lifshitz is an associate with Kozyak Tropin & Throckmorton. The authors can be reached at [email protected] and [email protected], respectively.